Citation Nr: 0732854
Decision Date: 10/19/07 Archive Date: 10/26/07
DOCKET NO. 03-25 036 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Diego, California
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
Matthew W. Blackwelder, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1968 to
February 1970.
This appeal comes to the Board of Veterans' Appeals (Board)
from a January 2002 rating decision.
FINDINGS OF FACT
1. There is a balance of evidence on whether the record
corroborates the veteran's report of a sexual assault in
service.
2. The veteran has been diagnosed with PTSD, based on a
sexual assault in service.
CONCLUSION OF LAW
With the resolution of reasonable doubt in the veteran's
favor, the criteria for service connection for PTSD have been
met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303,
3.304(f) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service Connection
To establish entitlement to service connection for PTSD a
veteran must provide: 1) medical evidence diagnosing PTSD;
2) a link, established by medical evidence, between current
symptoms of PTSD and an in-service stressor; and 3) credible
supporting evidence that the claimed in-service stressor
occurred. 38 C.F.R. § 3.304(f).
In September 2000, the veteran initially filed an application
requesting service connection for PTSD, which he believes is
the result of a sexual assault while he was in the navy.
The veteran testified that he was raped roughly four weeks
into basic training in 1968. The veteran stated that he was
in his bed at about 11:30 at night when a military policeman
with a flashlight came, tapped on the veteran's bed, and told
the veteran to head to the bathroom. The veteran contends
the policeman threatened to put the veteran on report for not
being asleep and then began fondling the veteran and
performing oral sex on him. The veteran indicated that the
entire incident took 20 to 25 minutes.
Since the veteran has not related a stressor which is combat-
related, additional corroboration must be obtained before
service connection for PTSD may be granted. The difficulty
in adjudicating cases of this nature is that there are often,
as in this case, no reports of the alleged sexual assault
contemporary with the incident. The veteran asserts that he
was afraid to do anything while the incident was occurring,
because he was afraid both of getting in trouble with his
superior officers and he was scared that he would be labeled
as being gay. The veteran testified his father was a career
military man, and the veteran was afraid of being dismissed
from the military or embarrassing his father. As such, he
indicated no report was ever recorded contemporaneously with
the alleged incident; and the first time the veteran publicly
spoke of the incident was in 2000, roughly 30 years after it
reportedly occurred.
The regulations recognize that sexual assault cases often go
unreported. As such, if a post-traumatic stress disorder
claim is based on an in-service personal assault, the
regulations authorize the use of evidence from sources other
than the veteran's service records to corroborate the
veteran's account of the stressor incident. Examples of such
evidence include, but are not limited to: records from law
enforcement authorities, rape crisis centers, mental health
counseling centers, hospitals, or physicians; pregnancy tests
or tests for sexually transmitted diseases; and statements
from family members, roommates, fellow service members, or
clergy. Evidence of behavior changes following the claimed
assault is one type of relevant evidence that may be found in
these sources. Examples of behavior changes that may
constitute credible evidence of the stressor include, but are
not limited to: a request for a transfer to another military
duty assignment; deterioration in work performance; substance
abuse; episodes of depression, panic attacks, or anxiety
without an identifiable cause; or unexplained economic or
social behavior changes. 38 C.F.R. § 3.304(f)(3).
The veteran stated that before the incident he was a high
achiever with no behavioral or disciplinary problems. The
veteran testified that after the assault he began having
problems. The first problem was that he failed his swimming
qualification, which the veteran reported was a prerequisite
for continuing on in basic training for the navy. The
veteran indicated that he could not focus on the test,
because he kept imaging his attacker coming back.
Unfortunately, as a result of failing, the veteran was placed
in a holding company in which the military policeman that
assaulted him worked. While the policeman never again
touched the veteran, the veteran reported worrying every day
that he would. The veteran stated that he had a lot of
anxiety as the presence of his assaulter caused him to fear
that he was about to be discharged from the military.
Following basic training, the veteran indicated that he
routinely had difficulty sleeping, because he was afraid that
someone else would assault him. The lack of sleep resulted
in the veteran often appearing disheveled and he would
frequently fall asleep at his post, both of which led to bad
evaluations. The veteran was eventually discharged from
service, and since that time he has had difficulty keeping
any jobs, he has gotten divorced twice, and he has struggled
with alcohol and drugs for many years.
The evidence of record reasonable supports the veteran's
timeline of events. The veteran's brother wrote a letter
(dated in March 2004) in which he described the veteran as
very outgoing prior to enlisting in the Navy. The brother
noted that he and the veteran used to sit around and talk
about everything and noted that before service the veteran
was working towards a degree in electronics and engineering.
The brother also indicated that the veteran was very social.
However, after the veteran entered service, the brother
recalled his father and mother going to a Naval Commander's
home to discuss his brother's behavior in the Navy, noting
that the veteran was often on restriction and was in the brig
on several occasions. The brother indicated that the veteran
had gone from a self-motivator who was positive and outgoing
prior to enlistment, to an anti-social quitter; and he
vividly described how the veteran fell into alcohol and drug
abuse following service.
The veteran's first/current wife (he married her prior to
enlisting, divorced her several years later, and then
remarried her 20 years later) also wrote a letter (dated in
March 2004) indicating that when the veteran first entered
boot camp she received letters from him daily, which he even
marked "special delivery." However, after about the fourth
week, the letters changed radically. The frequency of the
letters dropped precipitously to the point that she seldom
received any mail from the veteran. She kept asking the
veteran what was wrong, but she never received an answer.
The wife indicated that when the veteran got out of boot camp
(roughly six weeks) later he was a different person than when
he had entered. She reported that he became more withdrawn
and anti-social (a marked change from prior to enlistment).
Once the veteran was assigned to a ship, the wife reported
that things continued to decline, and she remembered the
veteran constantly getting reprimanded for falling asleep on
the job.
The veteran's wife also testified before the Board that prior
to entering service the veteran was very social, but
following service he became completely withdrawn. She also
testified that following service the veteran began smoking
and drinking, and became abusive, which were things that the
veteran never did prior to service. The veteran's wife
indicated that they had attended high school together where
they were both good students. She added that the veteran
even attended the local community college to study
electronics in the afternoon.
The veteran indicated that he did not tell his wife about the
sexual assault for 30 years following service, which she
confirmed in her 2004 letter.
As indicated in the chart below, service personnel records
confirm the veteran's poor performance while in service,
although they fail to show any evaluations during basic
training, so there is no baseline to compare the veteran's
performance prior to the alleged sexual assault.
Date
Professiona
l
Performance
Military
Behavior
Military
Appearance
Adaptabilit
y
March 1969
2.8
2.8
3.4
3.2
September
1969
2.4
2.6
2.8
2.6
February
1970
2.6
2.7
3.1
2.9
The personnel records also show veteran received nonjudicial
punishments in September 1969, October 1969, January 1970,
and February 1970, and in September 1969 it was noted that
the veteran showed little interest in any phase of electrical
work and had to be told nearly everything. Other remarks
were that he exhibited laziness and did not seem to care
about his work; he did not take pride in his appearance, and
had to occasionally be told to clean up and square away his
uniform; and he often had to have his work re-explained in
detail, and then redone by other sailors. In October 1969,
it was noted that the veteran showed more than normal lack of
interest when he first reported, and it was thought that he
had the mental capacity to become a top notch engineer if he
would recognize his opportunity and apply himself. The
veteran went on an unauthorized absence for a week in January
1970 and he was charged with breaking restriction in February
1970.
As such, the personnel records show that the veteran had
numerous problems following boot camp, and his performance
evaluations were consistently below average.
In 2000, the veteran began receiving psychiatric counseling
as a result of substance abuse counseling. The veteran was
told to seek his motivations for his substance abuse, and
through this process, the veteran began to come to grips with
the fact that he had been sexually assaulted many years
previously. At a VA consultation in December 2000, and based
on the veteran's report, he was noted to have begun having
behavioral problems immediately after being sexually
assaulted while in the military; and he was diagnosed with
PTSD.
The veteran's diagnosis of PTSD has been confirmed by a
number of medical professionals. For example, in a May 2001
letter, two social workers, and a VA psychiatrist described
that the veteran had PTSD based on a sexual assault. The
veteran has also been treated for PTSD by a VA psychologist
in San Diego who specializes in sexual assault cases (see
April 2006 letter, among others); and the veteran is
currently being treated by VA for PTSD.
The veteran, however, also has undergone two VA examinations
during the course of his appeal (in November 2004 and
December 2005), and both examiners declined to diagnose the
veteran with PTSD. In essence, these examiners did not
believe that the event the veteran's described as causing
PTSD, (being coerced into permitting another man to perform
oral sex on him) could have produced the level of impairment
the veteran was currently describing. Likewise, they
described a health care system that essentially accepted the
diagnosis of PTSD once it was placed in the record, from
whatever source, and observed the stressor was rarely
expressed in any detail to support the diagnosis.
In an April 2006 letter, the veteran's treating psychologist
at the Vet Center addressed these concerns noting the
veteran's sexually innocent background could well have
produced a sense of horror after the event the veteran
described occurred. In addition, she observed that during
the event the veteran did not know what the perpetrator would
do next, and he did not know if the perpetrator would be
back. The veteran only knew that the perpetrator had the
authority to come back (as he outranked him) and could if he
desired. She also noted that following the veteran's initial
training, he was assigned to a ship where he was outranked by
300 men, where he could not protect himself, and therefore
had difficulty sleeping which then caused him to fall asleep
while on watch. This fueled his anxiety and led to
experimentation with drugs and alcohol.
The psychologist found that the veteran currently manifested
symptoms of PTSD, including intrusive memories, rage/anger,
intimacy issues, and recurrent nightmares related to his time
in service.
While two VA examiners failed to conclude that the veteran
had PTSD, there are medical opinions that he does have the
disorder, including from a VA psychologist who had spent more
time treating the veteran and who specialized in treating
victims of sexual assault. Her diagnosis of PTSD is also
supported by several other VA doctors and the veteran is
currently being treated by VA for PTSD. Further, there is
evidence of behavioral problems in the veteran's service
personnel records and there is the statements from his wife
and brother who both observed the distinct change in the
veteran's personality, contemporaneous with his service.
Given that VA is required to consider alternative sources of
evidence in the case of alleged sexual assaults, the Board
finds that resolving doubt in the veteran's favor, this
evidence satisfactorily corroborates the veteran's stressor,
and therefore the criteria for service connection for PTSD
have been met.
In light of this result, a detailed discussion of VA's
various duties to notify and assist is unnecessary (because
any potential failure of VA in fulfilling these duties is
harmless error).
ORDER
Service connection for PTSD is granted.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs